Case of the Week: Martin Kpebu v Attorney General

Supreme Court · WRIT NO. J1/13/2015 · 5 May 2016

Facts:

The plaintiff, Martin Kpebu, challenged the constitutionality of Section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633). The said provision mandated courts to refuse bail for certain serious offenses, including treason, murder, rape, and robbery. Kpebu argued that this provision contravened Articles 15(2) and 19(2)(c) of the 1992 Constitution, which protect human dignity and establish the presumption of innocence.

The Attorney-General defended the provision, contending that it was justified under Article 14(1) of the Constitution, which allows restrictions on personal liberty in certain circumstances, including the prevention of crime and public safety concerns. The Court was thus tasked with determining whether the statutory prohibition on bail conflicted with constitutional protections.

Holding:

The Supreme Court ruled in favor of the plaintiff, holding that:

1. Section 96(7) of Act 30, by imposing a blanket prohibition on bail for specified offenses, was inconsistent with Articles 14(1), 15(2), and 19(2)(c) of the 1992 Constitution.
2. The provision undermined the fundamental presumption of innocence and denied accused persons the opportunity for judicial discretion in bail applications.
3. Any restriction on liberty must be subject to judicial oversight, and a law that entirely removes judicial discretion in bail matters is unconstitutional.

The Court, therefore, struck down Section 96(7) of Act 30 as null, void, and of no effect.

Implications of the Decision:

This decision reaffirmed the supremacy of the Constitution in protecting personal liberty and the presumption of innocence. It emphasized the cherished  principle of judicial discretion in bail matters, ensuring that courts have the authority to assess bail applications on a case-by-case basis. This decision also serves as a critical safeguard against arbitrary detention and potential abuses of prosecutorial or law enforcement power

Significant Quote:

“Any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision which guarantees his innocence until otherwise declared by a court of competent jurisdiction.”– Benin JSC

Commentary/Insight:

This decision fundamentally transformed Ghana’s criminal law by making all offences bailable. Thus, at present, bail can be obtained for every offence. However, the grant of it remains at the discretion of the Court. That is to say, the holding in Martin Kpebu, did not amount to a mandatory rule which eroded the discretion of judges to grant or refuse bail. 

For all that the decision effectively did was to remove or struck out the perennial and unhealthy dichotomy between bailable and non-bailable offences under section 96 ( 7 ) of Act 30, and did not affect section 96 ( 5 ) of Act 30.(section 96 (5) of act 30 spells out the factors that a judge seized with a bail application should consider)

The cautious words of Dotse JSC is an important guidepost in reflecting on Martin Kpebu, that: 

“The lead judgment of the court delivered by my brother Benin JSC, striking down section 96(7) of Act 30 as amended as unconstitutional, in which I concur, is not a carte blanche for the courts to admit every Tom, Dick and Harry to bail pending trial.”

The judgment therefore serves as a critical safeguard against arbitrary detention and potential abuse of power and the potential punishment of accused persons before their conviction, which help in strengthening Ghana’s commitment to upholding fundamental human rights.